Securing rights in the twenty-first century: A comparison of the disability and older persons' rights conventions

This article assesses the outcome of the proposed UN Convention on the Rights of Older People (CROP) by comparing its political, economic, and social contexts with those of the 2006 Convention on the Rights of Persons with Disabilities (CRPD). The research draws on interviews with those involved in the debates, nonparticipant observation, and analysis of primary and secondary literature. The article concludes that weakness of the aging advocacy network compared to the disability network and a relatively more closed political opportunity structure negatively influence the CROP's prospects. However, many of the hurdles proponents of the CROP face are similar to those faced at the beginning of the CRPD campaign, so progress and eventual adoption are possible. By comparison with the closely related CRPD, social scientists can better understand the institutional and contextual factors that influence campaign success in the contemporary context and advocates of the CROP can better anticipate roadblocks.     

Sidelining corporate human rights violations: The failure of the OECD’s regulatory consensus

This article critically assesses the effectiveness of the OECD mechanism for regulating human rights violations by private corporations. It presents a recategorization of the outcomes of OECD cases as a basis for analyzing—both quantitatively and qualitatively—precisely how such cases are resolved in practice. In doing so, the article critically evaluates two key claims made by proponents of the process: first, that the OECD mechanism is capable of encouraging mutually agreed upon, consensual outcomes; and, second, that the process has been enhanced following its 2011 revision. The article concludes by reflecting on the significance of the findings set out herein to the development of a new treaty on business and human rights that is currently under way in the UN Human Rights Council.     

International Power and Local Action – Implications for the Intersectionality of the Rights of Women with Disability

The recent United Nations Convention on the Rights of Persons with Disabilities (CRPD) reframes how policy responds to disability, difference, interdependence and rights. We examine how Australian disability activists used the CRPD to advocate for the intersectional rights of women with disability. We applied a framework from Zwingel's conceptualisation of mutually constituting global norms to analyse the intersectionality of rights represented in three stages of the CRPD process – during the drafting, the wording in the Convention, and the periodic review. We found that disability activists were able to shape the gendering of disability through their targeted representation as people with lived experience. This expertise filled a knowledge gap in the policy process valued by the actors at other policy levels. Extending Zwingel's concept of global discourse translation, it also suggests that the dynamic contribution continues in the international interpretation of the CRPD itself.     

What has gone wrong with inclusive education in Thailand?

This article critically reviews the inclusive education policy in Thailand. Since 1939, the Thai government has promoted the right of persons with disabilities to education. However, very little is known about the reasons why the inclusive education policy in Thailand has failed to motivate school‐aged children to participate in mainstream schools. This article argues that (i) the government has no coherent policy implementation; (ii) school teachers are not well trained to deal with students with disabilities; and (iii) universal design is not well placed. These three major factors have hindered the Thai government in its efforts to empower persons with disabilities through education. Copyright © 2015 John Wiley & Sons, Ltd.     

The Role of National Human Rights Institutions in the Implementation of the UN Guiding Principles

National human rights institutions (NHRIs) are key domestic mechanisms for promotion and protection of human rights. The institutions' broad mandate, competencies, and special status between state and nonstate actors on the one hand, and special status between the national and international levels on the other hand enable them to engage effectively in the field of business and human rights. Since 2009, NHRIs have been engaging with the international human rights system in order to increase understanding and raise awareness of their role in addressing business and human rights issues. As a result, they have contributed to the development of the UN “Protect, Respect and Remedy” Framework and obtained an evolving role within all pillars of the framework and in its implementation. This paper presents how these domestic institutions, bridging the national and international levels, fit into the UN legal regime for corporate responsibility for human rights and what contribution they make to the implementation of the UN Guiding Principles.     

Sexual orientation and gender identity in Nepal: Rights promotion through UN development assistance

United Nations (UN) development agencies have been actively working to protect lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights in Nepal, despite having no official mandate to work on these rights. This presents an important example of how such agencies are able to act independently to set their own agenda and illustrates the “open system” approach to international bureaucracies. It also suggests that these agencies have the potential to be important instruments of LGBTI rights promotion outside the traditional human rights machinery such as the Human Rights Council and various committees. Based on extensive interview research as well as documentary evidence, this article traces the origins of the UN's engagement with LGBTI rights. It then discusses the work of UN agencies in South Asia, and Nepal in particular, focusing on the UN Development Programme, the UN Children's Fund, UNAIDS, and UN Women. Political changes in Nepal since 2006 have opened it up for change in its approach to these rights, and UN agencies have worked actively to change both legal norms and social attitudes. The conclusion considers whether these lessons are applicable to other states and whether the UN development machinery must be considered an important ally in pursuing LGBTI rights worldwide.     

Domestic law and human rights treaty commitments: The Convention against Torture

How human rights treaties will be incorporated and applied domestically must affect how eager states will be to ratify those treaties. This article focuses on two characteristics of domestic legal systems that shape the relationship between international law and domestic law: whether treaties are directly incorporated into domestic law and whether treaties can override ordinary statute. The analysis probes two arguments as to why domestic legal institutions influence ratification decisions, one emphasizing the potential costs associated with ratification and the other emphasizing congruence between domestic values and treaty norms. Survival analysis of ratification of the Convention against Torture reveals that both judicial independence and making treaties equal or superior to statute increase the likelihood of ratification, which is consistent with the norm-congruence thesis. The results suggest new avenues for investigating the relationships between human rights treaties and domestic legal institutions.     

Human rights and the city: Including marginalized communities in urban development and smart cities

The idea that the city belongs to all individuals inhabiting the urban space is grounded in the Universal Declaration of Human Rights and the New Urban Agenda, and it is referred to as “right to the city” or “rights in the city.” This article discusses how human rights relate to the city and its inhabitants, examines the meaning of the right to the city and human rights in the city in today’s urban environment, and deliberates how to transform cities into spaces that reflect fundamental human rights principles. By looking at the situation of marginalized groups in cities, the article focuses on the questions of how to build inclusive, fair, and accessible cities and how to eliminate inequalities seen in urban communities. Because technology is often cited as one way to foster integration of marginalized communities, special attention will be given to the smart city and the opportunities and challenges presented by information and communication technologies (ICTs) for human rights, accessibility, and inclusion. Using the case of persons with disabilities as an illustration, the article argues that urban development needs to be fundamentally transformed to live up to human rights standards. Only a multi-stakeholder urban design process will produce truly inclusive urban spaces that fulfill the right to the city.     

Implementing children’s right to be heard: Local attenuations of a global commitment

A critical challenge for human rights and human security alike turns on diminution of subject audibility and voice and the reduction of rights-bearing subjects to mere referent objects of security. Owing in part to inadequate theorization of child/youth subjecthood, this problem is especially acute where the rights and security of young people are at issue. Though the UN Convention on the Rights of the Child makes specific provision for recovery of the voices of children and youth, this may be frustrated at implementation in local settings. Moving beyond the Global South, where this problem has been more readily acknowledged, this article inquires into practices that undermine child/youth rights by reinforcing the subject/object positions of protector/protected in ways that disallow young people’s articulations of their best interests and security needs. Spurious presumptions about young people’s (in)capacity for independent subjecthood as well as emergent rhetorical technologies of silencing and voice-denial are identified.     

Advancing LGBT Rights in Turkey: Tolerance or Protection?

Tolerance is treated as a virtue and a key principle in liberal theories of the state and human rights. Critics of liberalism have already addressed limitations of tolerance, and the United Nations (UN) introduced broader and more inclusive human rights and non-discrimination norms. Yet, tolerance is still invoked in human rights advocacy, and the UN promotes teaching tolerance as a means to protect human rights. However, there is an asymmetrical relationship between the “tolerant” and the “tolerated,” which must be questioned for its human rights implications. The paper contends that tolerance does not ensure non-discrimination, freedom from persecution, or ending violence. Instead, it can be complicit in violence against lesbian, gay, bisexual, and transgender (LGBT) persons. As an illustrative case, it examines Turkey—a country that has pursued the liberal policy of tolerance by not criminalizing homosexuality—during a reform period that involved further liberalization of law but not the protection of LGBT rights.     

The Interventionist Turn of UN Peacekeeping: New Western Politics of Protection or Bureaucratic Mission Creep?

During recent years, the United Nations (UN) peacekeeping system has exerted robust interventions in the domestic jurisdiction of target states for human rights purposes. The existing literature attributes the explanation mainly to the “new politics of protection” pursued by Western governments and thus validates the realist hypothesis. This article analyzes the Côte d'Ivoire and Haiti cases to demonstrate that not only government policies (the realist hypothesis) but also independent bureaucratic powers exerted by senior UN officials (the social constructivist thesis) have contributed to the emergence of interventionist policies at the UN. Moreover, “bottom-up” initiatives stemming from the virtue ethics of senior UN officials have played a much more decisive role in generating the interventionist turn than “top-down” institutional guidelines and doctrines, such as the Responsibility to Protect (RtoP) principle. Instead of RtoP, UN officials draw upon broad legitimating principles of the UN, notably human security, to justify their interventionist policies.     

Supporting Dictatorship and Promoting Human Rights? UN Technical Assistance to Egypt

Abstract

Does UN human rights technical assistance weaken or strengthen authoritarian dictatorship in Egypt? Drawing on interviews with UN, donor and domestic human rights non-governmental organization representatives conducted in Egypt in 2007 and 2010, this article focuses on the United Nations Development Programme (UNDP)/Egypt's BENAA Human Rights Capacity Building Project. The UNDP partnered with the Egyptian government to train public officials in human rights protections and to facilitate elite socialization, a strategy recommended by social constructivism. Critics, however, assert that such technical assistance strengthens rather than weakens authoritarianism. This article explores conflicts between UN and state goals in implementing technical assistance projects, as well as competing assumptions about norm diffusion and internalization held by supporters and critics of the programme.     

Theoretical challenges to understanding the potential impact of the Universal Periodic Review Mechanism: Revisiting theoretical approaches to state human rights compliance

The Universal Periodic Review (UPR) mechanism is the most recent and distinct addition to the UN human rights system because of the level of state control over the mechanism, the inclusivity of the review process and its emphasis on cooperation and dialogue in monitoring human rights implementation of states. Since the start of the third cycle of the UPR in 2017, questions on the efficacy of the UPR mechanism have gained increasing attention among international human rights scholars and practitioners. However, little of the scholarship take a theoretical approach to understanding the potential impact of the UPR mechanism. This article engages with various theoretical approaches to international human rights law to determine alternative theoretical frameworks to understand the potential impact of the UPR mechanism. This article contends that while the theories examined are not mutually exclusive, the theory of acculturation provides the most appropriate theoretical framework to understand the potential impact of the UPR mechanism. This contributes to an appreciation for human rights strategies based on cooperation and how such strategies can be beneficial in realising incremental progress in the human rights implementation of states.     

Book Reviews

Abstract

Stretching a third of the way around the globe, the Asia Pacific is the world's most populous region. Yet, it remains the sole region without a human rights court or commission, and without a human rights treaty. The notable absence there of a human rights mechanism based on such institutions is often explained away by reference to the region's size and heterogeneity, the constituent states’ reluctance to interfere in the affairs of others, and the existence of rivalries. Whilst agreeing that there is no inter-governmental initiative that looks set to change the present state of affairs in the Asia Pacific, this article places the spotlight on another model of creating a regional human rights mechanism, that is, the unique and burgeoning Asia Pacific Forum of National Human Rights Institutions. Specifically, it assesses the prospects for Japan, Taiwan and China – three key regional players whose membership of the Forum is still outstanding – to create domestic human rights bodies that eventually join.     

Lessons in suffering: Greek tragedy’s teachings on disability through Sophocles’ Philoctetes

Political theory often sees disability through the negative language of abnormality and inability, which perceives disability as a deficiency that deviates from the able-bodied. However, critical disability studies strives to transform the disabling language of political theory into an enabling project that sees the ability, unique perspectives, capacities, and contributions of people with disabilities. Through Sophocles’ Philoctetes, this article examines the negative ways in which disability is conceptualized, socially constructed, and (dis)valued, as well as the possibilities for a positive and enabling theory of disability. The character of Philoctetes exposes the negative social construction of disability as well as the extraordinary ability of those who live with chronic impairments. The Philoctetes meditates on the status of the disabled who are unfairly isolated from human community and who are often unfairly seen in an instrumental fashion that fails to recognize their fundamental status as human beings who are capable, valuable, and essential for the success of human endeavors and community. For political theory, the Philoctetes demonstrates the ability in disability, and shines brightly on the essential contributions that people with disabilities make in our societies. Philoctetes shows that the lives of people who live daily with chronic impairments need not be seen as necessarily tragic. Instead, these modes of being speak to human diversity, ingenuity, and triumph.     

Reproductive responsibilities: Rethinking the fetal rights debate

The fetal rights debate has grown increasingly vitriolic in recent years. The animosity between those who attribute rights to the fetus from the moment of conception and those who argue that the rights of citizens can bestowed only upon those who have been born has created an impasse in a range of important public policy arenas. This article attempts to demonstrate that neither side of this debate provides a satisfactory answer to the question of what limits the state may legitimately place on the medical and behavioral choices of pregnant women. To move beyond the impasse created by the intransigent rhetoric of competing rights, this essay explores the related responsibilities of the expectant mother, the emergent family, and a liberal democratic state. It also applies this conception of reproductive responsibilities to policy issues pertaining to privacy, abortion, regulation of fertile women, and state intervention into parental decision-making.     

"Fast-track" strategies in long-term public disability programs around the world

Long-term public disability programs in the United States and several other countries have incorporated fast-track (FT) procedures that share a common goal of accelerating applicants through various stages of the disability determination process--generally for those with severe disabilities, blindness, or terminal illness. This article identifies a variety of FT procedures either implemented or under consideration in public long-term disability programs operated in the United States and other countries; compares FT procedures in those disability programs with respect to specific program features, differences with respect to the administrative components involved in those procedures, and the level of technology used; examines more generally why countries may consider implementing FT procedures; and describes how FT procedures may be employed to improve overall processing of claims and contribute to disability case management.     

Sex Trafficking: Trends,Challenges, and the Limitations of International Law

The passage of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children in 2000 marked the first global effort to address human trafficking in 50 years. Since the passage of the UN Protocol international organizations, non-governmental organizations, and individual states have devoted significant resources to eliminating human trafficking. This article critically examines the impact of these efforts with reference to the trends, political, and empirical challenges in data collection and the limitations of international law. I argue that current international law disproportionately addresses the criminal prosecution of traffickers at the expense of trafficking victims’ human rights, and has therefore not yet reached its full potential in the fight against human sex trafficking.     

Sui Generis and Treaty Citizenship

This article, written from an Aboriginal perspective, explores the problematic invitation to federal citizenship in Canada for Aboriginal peoples. Its focus is on the deficits of such an offering for the constitutional rights of Aboriginal peoples, which is characterized by sui generis and treaty citizenship. Informed by Aboriginal and intercultural perspectives, the article argues that the offerings of statutory citizenship for Aboriginal peoples inverts rather than respects the constitutional relationship. It looks at how the Supreme Court of Canada has located and structured sui generis Aboriginal orders, the concepts of sui generis citizenship, treaty federalism, and constitutional supremacy as compared with the idea of federal citizenship, concluding that such 'invitations' to Canadian citizenship are inconsistent with and infringe upon the constitutional rights of Aboriginal peoples. By understanding the prismatic nature of Canadian federalism in a postcolonial context, this article aims at reconceptualizing Canadian citizenship in terms of ecological belonging, fundamental rights, and respect for human diversity and creativity.     

The law and politics of transnational rights protection: Trusteeship,effectiveness, de-delegation

International trustee courts embody a specific form of delegation, in which state principals confer on such courts the authority to interpret and apply treaties agreed by the states in order to realize specific values and interests. Human rights courts help states resolve commitment and enforcement problems that are inherent in human rights treaties. This study seeks to answer the question, what happens when states parties seek to reduce or eliminate the authority of a human rights court? To answer these questions, the article assesses six human rights treaty regimes: the Council of Europe; the Organization of American States; the African Union; the Economic Community of West African States; the East African Community; and the Southern African Development Community. The article identifies four types of de-delegation possible with respect to international human rights courts and assesses the extent to which states have sought to de-delegate from them. With one exception (the SADC Tribunal), the regimes examined here have so far successfully withstood the challenge of de-delegation.